Thursday, June 19, 2014

"This isn't about Farmer Brown anymore..."

The NYT had a nice piece about a Maine case regarding whether the state can require a business license from a farmer if purchases are made only directly from a farmer and the farmer does not advertise.  See the article here.

I've followed this "food sovereignty" issue throughout this spring on the blog and through my clinic's project on agritourism.  I've come to believe that we're on the cusp of significant regulatory change--and potentially significant litigation--as agritourism operations proliferate especially at the rural-urban interface.


Stephen R. Miller

June 19, 2014 | Permalink | Comments (0)

No Per Se Deduction for Conservation Easements

Many of the exciting conservation easement cases (yes I did say "exciting conservation easement cases") come up in the context of facade easements. I think facade easements just sound sketchy questionable to many of us. Someone with a beautiful historic building gets a tax deduction for agreeing not to destroy the facade of that beautiful home. My gut reaction is to object that the landowners unlikely had any plan to mar one of the aspects that likely drew them to purchasing the building. In fact, I have heard more than one landowner brag that they just got a tax deduction for doing what they were already doing. On further consideration though, we can see that there might be value to the public here. This is particularly so in an area where (1) landowner are having trouble affording the upkeep on the homes or (2) where economic pressures or a lack of other protection mechanisms put the buildings at risk. Some have argued that such restrictions always have value. That is, even if we have a landowner who was already planning to protect the building and the home is in a district where local laws prevent destruction (or require upkeep), you never know what the future holds in terms of other landowners or changing government whims so a facade easement may end up saying the parcel one day. Personally, such speculative value doesn't seem the best use of public funds when we can confidently identify so many places where conservation yields immediate results.

Scheidelman v. C.I.R. (2014 WL 2748623) decided yesterday by the Second Circuit is the latest in a saga over the deduction of a Brooklyn townhouse. In 1997, Huda Scheidelman paid $255,000 for this house in the designated Fort Greene Historic District. The district is designated as a historic district by the National Park Service and by NYC's Landmarks Preservation Commission. Under these protections, it is illegal to alter the facade without the consent of the Landmarks Preservation Commission.

In 2003, Scheidelman donated a facade conservation easement to the National Arhcitectural Trust, now renamed the Trust for Architectural Easements. The Trust's recommended appraiser valued the conservation easement at $115,000 and Scheidelman claimed a charitable deduction for that amount on her 2004 tax return.

After an audit the IRS rejected her claimed deduction as not being accompanied by a "qualified appraisal" as required by statute. The Tax Court agreed, but the Second Circuit vacated and sent the case back for a de novo review of the fair market value of the conservation easement. After doing so, the Tax Court determined that the value of the conservation easement should be $0 because it did not diminish the property value of Scheidelman's townhouse. Using the standard before and after method of appraisal, this calculation makes sense. Because other laws already restrict the property, the presence of the conservation easement doesn't change the value of the property. Of course, some may argue that the before and after method isn't appropriate and perhaps instead we should do some calculation based on value to the public but well... that's a harder number to crunch and more open to abuse. The Second Circuit just upheld the tax court's finding that the deduction had no value.

My favorite line of the Second Circuit (per curiam) opinion is the statement that conservation easements do not represent a per se reduction in fair market value and in fact may even serve to enhance property value.

June 19, 2014 in Architecture, Caselaw, Conservation Easements, Land Trust, New York, Property Rights, Servitudes | Permalink | Comments (1)

Tuesday, June 17, 2014

Anthromes, Novel Ecosystems, and other new vocab words

If you are like me, you have a humongous pile short stack of articles that you hope to one day find time to read. Summer is when I get my chance to make a dent in this continuously replenishing tower of fun.

Today, I delved into some 2013 articles by geographer Erle Ellis and was struck by how helpful they are for thinking about land use, particularly in the context of land conservation, working landscapes, and a changing world.

In Sustaining Biodiversity and People in the World's Anthropogenic Biomes, 5 Current Opinion in Env't Sustainability 368 (2013), Ellis introduces me to a new term: anthrome. A foreshortening of anthropogenic biome, anthromes are ecosystems characterized by human involvement. That is, these are landscapes shaped by humans. Building off of Crutzen's idea of the Anthropocene, Ellis explains that 3/4 of the terrestrial biosphere can now be described as anthromes. What is the implication of this? Well that is perhaps harder to pin down. If we are are shaping ecosystems, maybe we have a bigger role to play in ensuring the viability of the systems and protecting biodiversity. When anthromes replace wildlands, perhaps we need to shift some of our conservation efforts to such lands. Ellis' research suggests a promising message: that anthromes may actually still sustain native species and we can increase the benefits of these lands to humans while protecting for biodiversity. Sounds good to me, but sounds like a tough road ahead. This work ties into scholarly discussions of novel ecosystems, something I am finding increasingly helpful for think about land conservation. Novel ecosystems are new types of biomes that have no real precedent or previous corollary and therefore our approach to land conservation (and resiliency) must confront this concept when thinking about what is the world that we want to protect.

In Used Planet: A Global History, 110 PNAS 7978 (2013), Erle joins with a crew of folks from the Global Land Project to discuss patterns of land use change and land use intensification over time. Those land use history buffs among us might find this piece particularly intriguing as the authors describe land-use intensification as "adaptive processes by which human populations systematically adopt increasingly productive land-use technologies." Under this lens, the authors track two different models for global land-use history. Ending with a hopeful note, the authors suggest that the next stage of land use may be one where we become more efficient and may succeed in reversing environmental impacts of prior land use. Thus, both projects end with optimistic thoughts about the future (but calling on us to make tough decisions and do hard work).  I look forward to continuing projects from this group.

June 17, 2014 in Environmentalism, Scholarship | Permalink | Comments (0)

Monday, June 16, 2014

Fracking in the exurbs

A news story from Colorado today illustrates that fracking, and especially its relationship to exurban communities, continues to be a challenging issue.  From a local Colorado newspaper:

In January, Geri and Steve Nelson moved from Aurora into a brand new home in Erie's Vista Ridge neighborhood, on a choice plot with a backyard overlooking a golf course and several acres of wide open fields.

Two weeks ago, Geri Nelson noticed three trucks and an unusual wire strung along the walking path behind her home. She asked around, and found out 13 oil and gas wells are slated for installation in the untouched greenery that her back porch overlooks.

Now the couple and some of their neighbors, most of whom also moved to Vista Ridge within the last year, are up in arms over a development they fear will dramatically change their quality of life, and which they said they never were warned of prior to buying their new homes.

"We moved into a house thinking we had nice quiet back there," Geri Nelson said. "If houses went in eventually, houses went in eventually. But we never imagined that there would be noise and drilling and lights 24 hours a day. That's a surprise to us."

Read the rest of the story here.  Those interested in the issue will want to keep abreast of the Pace / Yale collaboration on local government and fracking that we highlighted earlier this month.  Read the team's white paper on the subject here.

Stephen R. Miller

June 16, 2014 | Permalink | Comments (0)

Wednesday, June 11, 2014

Congress of New Urbanism (courtesy of Yelp!)

Last week, Buffalo hosted the 22nd Congress for New Urbanism. With a constrained conference budget, I was planning on just scoping out the (numerous) public events. Then conference funding came through from a surprising source. I actually won free conference registration via Yelp! (yes it pays to  be elite). I am not sure what it says about academia when we have to look to social media to help with our research funding but I was happy to get in the door!

CNU 22 was a mixture of the inspirational and the mundane. It was amazing to see people from all over the country (and particularly so many from Buffalo) coming together to think about how to improve your communities. I bathed in the local pride (feeling the Buffalove as we say around here) and heard inspiring tales about efforts in Toronto, Minneapolis, DC, and Milwaukee. But nothing was actually radical. In some ways this is an encouraging story. It no longer seems crazy to argue that suburban sprawl is destroying community. I really didn't need convincing that we should have more walkable or bikable cities. There seems to be general agreement on what elements make for a thriving urban environment and largely agreement from the attendees on how to get there (community involvement, form based codes, economic development). Thus, while I enjoyed myself and met some fascinating folks I left the conference with an empty notebook. Maybe I just attended the wrong sessions, but I wonder what types of legal changes we might need, what type of property tools we can use, and of course who is gonna fund it all. Any suggestions?

June 11, 2014 in Community Design, Community Economic Development, Conferences, Downtown, Economic Development, Form-Based Codes, New Urbanism, Pedestrian, Planning, Smart Growth, Sprawl, Urbanism | Permalink | Comments (2)

Monday, June 9, 2014

Roger Williams University Law seeks director for Marine Affairs Institute

Thursday, June 5, 2014

Land Use Prof Blog comments now in real time!

The editors of the Land Use Prof Blog are excited to announce that we have changed the "comments" section of the blog to be "unmoderated."  We are doing this because we realize that it has often taken us too long to discover comments that need to be posted and, we believe, this has likely stifled some discussion that would otherwise occur.  And so, we are going "unmoderated" for a trial period.  That means that as soon as you post a comment, it will now appear on the blog immediately.  

Now for the legalese.  We reserve the right to delete any comment for any reason, though we anticipate wielding such power only in the few cases  where we receive spam or comments that are not befitting of the forum's expected collegiality and are beyond the realm of spirited debate.

So go ahead, comment away!

June 5, 2014 | Permalink | Comments (0)

University of Florida Law seeks non-tenure track skills instructor focused on Environmental and Land Use Law

The University of Florida Fredric G. Levin College of Law seeks to fill a non-tenure track skills instructor lecturer position focused on Environmental and Land Use Law. Applicants for this position should hold a J.D. degree from an accredited law school, be a member in good standing of a state Bar, and have a minimum of three years of experience practicing environmental or land use law. Primary responsibilities will include developing and teaching skills courses on topics such as interviewing and counseling as well as skills and experiential courses, including field courses, in the College’s Environmental and Land Use program, and supervising externships and projects. Experience with Florida or federal environmental, water or land use law, current Florida Bar membership, and experience seeking grants are desirable. The anticipated starting date is January 2015. The salary range is $60,000 to $66,500 for a 12-month appointment. Members of groups under-represented in the legal profession including persons of color and women are particularly encouraged to apply. To apply go to: Refer to requisition number 0905739. Please include CV, transcript(s), and the names of three references. The University of Florida is an equal opportunity employer. If accommodation due to disability is needed to apply for this position, please call (352)392-4621 or TDD (352)392-7734.

June 5, 2014 | Permalink | Comments (0)

Monday, June 2, 2014

New GAO Report: Length of Development Process, Cost Estimates, and Ridership Forecasts for Capital-Investment Grant Projects

Overshadowed by the EPA's release of climate change regs today was a new GAO report that will be of interest to land use folks.  The report, entitled Length of Development Process, Cost Estimates, and Ridership Forecasts for Capital-Investment Grant Projects, provides a look into the vagaries of transportation planning.  From the report's abstract:

For the 32 New Starts, Small Starts, and Very Small Starts projects funded from 2005 to 2013 that GAO reviewed, the length of the development process varied substantially, from as little as 2 to as long as 14 years, based on GAO’s analysis of data from the Federal Transit Administration (FTA) and project-sponsors. GAO found that the development process took 3 to 14 years to complete for New Starts projects, 3 to 12 years for Small Starts projects, and 2 to 11 years for Very Small Starts projects. The length of the process is generally driven by factors that are often unique to each project, including (1) the extent of local-planning activities prior to formal approval for funding, (2) the extent and availability of local and financial support, and (3) the extent of FTA oversight activities. For example, sponsors of 17 of the 32 projects GAO reviewed stated that activities to secure local funding contributed to the length of the development process. FTA has taken some steps to streamline this process. For example, in January 2012, FTA eliminated the requirement for the development of a hypothetical alternative that served as a basis of comparison to evaluate a proposed project.

GAO found that capital cost estimates for New Starts, Small Starts, and Very Small Starts projects during the development process generally did not change substantially prior to the award of federal funding. For 23 of the 32 projects GAO reviewed, the final cost estimated prior to receiving federal funding was within 10 percent of the original cost estimates. The remaining 9 projects varied by as much as 41 percent lower and 55 percent higher than the estimates used at the end of the development process. Several project sponsors told us that, when changes did occur, it was a result of changing market conditions and FTA’s recommending that sponsors increase project costs to cover unforeseen events, among other factors. For example, officials at the Valley Transportation Authority, located in Santa Clara, California, stated that FTA recommended that it increase the project’s cost by $100 million to cover unforeseen events.

New and Small Starts project sponsors whom GAO interviewed generally forecast ridership using regional travel models prepared by metropolitan-planning organizations (MPO). Specifically, 8 out of the 9 New Starts project sponsors and 3 out of 4 Small Starts project sponsors GAO spoke with use these travel models. For example, for a Portland, Oregon, streetcar project, the project sponsor used travel forecasts prepared by the Portland MPO. The other New Starts and Small Starts project sponsors use actual transit-ridership data from surveys of regional transit riders; and a statewide travel model, respectively. On the other hand, FTA procedures permit sponsors of Very Small Starts projects to essentially demonstrate, through a detailed counting of riders of existing public transportation in the project’s corridor, that the proposed project will service at least 3,000 transit riders on an average weekday. FTA has taken a number of actions to support the development of ridership forecasts. These include, among other actions, providing funding to state agencies and MPOs to help them collect travel data and develop forecasting procedures and providing technical support, such as reviews of final forecasts. GAO interviewed 13 New Starts and Small Starts project sponsors and most said that FTA’s technical assistance, which includes reviewing the ridership forecasts, was generally helpful.

Stephen R. Miller

June 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, May 30, 2014

Land use articles posted on SSRN in May

Here are all the land use-related articles posted to SSRN in the month of May (as always, search term "land use" limited to "last month" of posts).  I am admittedly cutting May short a day because, well, I'm headed out to Walla Walla for some sun, wine, and good food.  I'll double-check in June for any articles posted on May's last day and include any such articles in that month's list.

Here is May's list:

1 Incl. Electronic Paper Agritourism at the Rural-Urban Interface: A National Overview of Legal Issues with 20 Proposals for Idaho 
Stephen R. Miller 
University of Idaho College of Law - Boise 
Date posted: 
11 May 2014

Last revised: 
20 May 2014

working papers series

2 Incl. Electronic Paper Zoned for Injustice: Moving Beyond Zoning and Market-Based Land Preservation to Address Rural Poverty 
Liz Clark Rinehart 
University of Maryland Francis King Carey School of Law 
Date posted: 
11 May 2014

Last revised: 
27 May 2014

working papers series

3 Incl. Electronic Paper The Energy Implications of City Size and Density 
William D. Larson and Anthony M. Yezer 
Government of the United States of America - Bureau of Economic Analysis (BEA) and George Washington University - Department of Economics 
Date posted: 
17 May 2014

working papers series

4 Incl. Electronic Paper Reducing Livability: How Sustainability Planning Threatens the American Dream 
Policy Analysis No. 740
Randal O'Toole 
Cato Institute 
Date posted: 
04 May 2014

Accepted Paper Series

5 Incl. Electronic Paper Billionaires, Birds, and Brawls: Reconceptualizing Energy Easements for Eco-Efficiency 
University of Hawaii Law Review, Forthcoming
Nadia B. Ahmad 
University of Florida - Fredric G. Levin College of Law 
Date posted: 
03 May 2014

Accepted Paper Series

6 Incl. Electronic Paper Small Property, Adverse Possession and Optional Law 
The Law and Economics of Possession, edited by Yun-chien Chang, Cambridge University Press, 2014, Forthcoming
Shitong Qiao 
Yale University - Law School 
Date posted: 
17 May 2014

Accepted Paper Series

7 Incl. Electronic Paper On the Waterfront: New York City's Climate Change Adaptation and Mitigation Challenge (Part 2 of 2) 
25 Envtl. L. in N.Y. 101 (May 2014) , Touro Law Center Legal Studies Research Paper
Sarah Adams-Schoen 
Touro College - Jacob D. Fuchsberg Law Center 
Date posted: 
25 May 2014

Accepted Paper Series

8 Incl. Electronic Paper Efficient Classified Land Taxation 
Erik B. Johnson and Jason Pearcy 
Quinnipiac University - Lender School of Business and Montana State University - Bozeman - Department of Agricultural Economics and Economics 
Date posted: 
10 May 2014

working papers series

9 Incl. Electronic Paper The Economics and Politics of 'Green' Flood Control: A Historical Examination of Natural Valley Storage Protection by the Corps of Engineers 
Resources for the Future Discussion Paper No. 14-07
Carolyn Kousky 
Resources for the Future 
Date posted: 
04 May 2014

working papers series

10 Incl. Electronic Paper Fairness, Equity, and a Level Playing Field: Development Goals for the Resilient City 
Idaho Law Review, Vol. 50, 2014
Christopher K. Odinet 
Southern University Law Center 
Date posted: 
24 May 2014

Accepted Paper Series

11 Incl. Electronic Paper Towards a New Policy for Climate Adaptive Water Management in Flanders: The Concept of Signal Areas 
Utrecht Law Review, Volume 10, Issue 2, May 2014
Peter De Smedt 
Centre for Environmental and Energy Law, Ghent University (Belgium) 
Date posted: 
17 May 2014

Last revised: 
29 May 2014

Accepted Paper Series

12 Incl. Electronic Paper Carbon Forestry and Sociospatial Difference: An Examination of Two Carbon Offset Projects Among Indigenous Smallholders in Costa Rica 
Society and Natural Resources, Forthcoming
David Lansing 
University of Maryland Baltimore County 
Date posted: 
28 May 2014

Accepted Paper Series

13 Incl. Fee Electronic Paper Race, Ethnicity, and Discriminatory Zoning 
NBER Working Paper No. w20108
Allison Shertzer Tate Twinam and Randall Walsh 
University of Pittsburgh - Department of Economics , University of Pittsburgh - Department of Economics and University of Pittsburgh - Department of Economics 
Date posted: 
14 May 2014

working papers series

14 Incl. Electronic Paper Sustainability in the Three Dimensions of Society - Urbanization, Food Insecurity and Agriculture 
OIDA International Journal of Sustainable Development, Vol. 07, No. 02, pp. 79-90, 2014
Maninder Singh Saini and Rishav Jain 
Panjab University - University Institute of Legal Studies and Panjab University - University Institute of Legal Studies 
Date posted: 
26 May 2014

Accepted Paper Series

15 Incl. Electronic Paper The Remedy for a Nollan/Dolan Unconstitutional Conditions Violation 
Vermont Law Review, Vol. 38, p. 701, 2014
Scott Woodward 
Vermont Law School 
Date posted: 
24 May 2014

Accepted Paper Series

16 Incl. Electronic Paper Not in My Atlantic Yards: Examining Netroots’ Role in Eminent Domain Reform 
Georgetown Law Journal, Vol. 100, pp. 263-293, 2011
Kate Klonick 
Georgetown University Law Center 
Date posted: 
29 May 2014

Accepted Paper Series

17 Incl. Electronic Paper The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box 
Notre Dame Law Review, Vol. 84, No. 4, 2009
Marcilynn A. Burke 
University of Houston Law Center 
Date posted: 
24 May 2014

Accepted Paper Series

Stephen R. Miller

May 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Pace Law / Yale Center for Environmental Law & Policy project on fracking and local government

Earlier this week, EnergyWire had a nice article discussing the early stages of a promising project, coordinated by Prof. John Nolon, at Pace Law School's Land Use Law Center and the Yale Center for Environmental Law & Policy.  The project is taking a bottom-up approach to finding best practices for local governments facing oil and gas development through hydraulic fracturing.  From the article:

Legal scholars are embarking on a project to bridge a regulatory gap that has pushed many municipalities to ban hydraulic fracturing within their borders.

Rather than booting out the oil and gas industry altogether, the Pace Law School Land Use Law Center and the Yale Center for Environmental Law & Policy are proposing a solution that would merge community and industry interests to buffer residents from drilling's negative impacts while allowing them to reap its economic benefits.

"It appears that fracking is going to be going forward in most states, and in most states there are a lot of impacts of fracking that are not going to be regulated by the state agency or by the federal government," said John Nolon, a professor at Pace Law School. "So those are impacts that local governments are going to feel."

View the entire article here.  

This sounds like a great--and much needed--project in itself.  It also is illustrative of how land use clinics have tremendous power to help local governments both in a case-specific context and also by sharing knowledge in a way that helps multiple communities across a state and, perhaps, across the country.  This new project on fracking at Pace and Yale is certain to find a welcome audience in local governments across the country.

Stephen R. Miller 

May 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Digging into the Detroit Blight Removal Task Force report

The NYT has a nice article today on the landmark blight study in Detroit--arguably the largest blight study ever--that recommends tearing down some 40,000 buildings.  The NYT article is here.

For the land use types that want to dig a little deeper, the report's recommendations summary is really fascinating, as it describes a variety of cutting edge approaches to blight, including everything from using a big data approach to mapping the blight and making it publicly available to the nuts and bolts of legal title, property tax reform, and beyond.  

The whole website of the Detroit Blight Removal Task Force is well worth a look.  For those like myself obsessed with big data's community empowering force in the land use context, be sure to play around with the mapping function.  And then there is this video, which almost makes land use planning look sexy:


Stephen R. Miller


May 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Landscaping the suburban desert: A visit to Peoria, Arizona

Over Memorial Day weekend, I had occasion to visit Phoenix.  I took some time to tour that booming western fringe of Phoenix where armies of bulldozers plough over saguaro cacti to build the next town of subdivisions.  It's hard not to feel a pang for the loss of the desert; consider that a given.  

I was surprised, however, to see the landscaping of subdivisions in these new desert communities, which use almost no grass.  I found myself pulling up their planning code sections on landscaping this morning, and they are not a bad example for how the American lawn can be re-envisioned.

Take, for instance, Peoria, Arizona, which among its landscaping regulations, limits "turf," or the great American lawn, to just 20 percent of the lot area.  14-35-4(B)(2).  Or, consider Peoria's requirements for re-landscaping with native plants, which are illustrated by this image:

Pages from 14_35_LandscapeRequirements(2)14-35-4(A)(2)(d).  For those interested in landscaping and new ways to conceptualize the American lawn, places like Peoria and other western Phoenix communities will provide some starting points. 

Stephen R. Miller

May 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Oregon County Bans GMO Crops

In an interesting election twist, organic farmers in Jackson County, Oregon, spearheaded a county-wide ban on crops containing genetically modified organisms. You can read more in the Idaho Statesman, and on the environmental blog Grist.

Jamie Baker Roskie

May 21, 2014 in Agriculture | Permalink | Comments (0) | TrackBack (0)

UMKC seeks visitor to teach property and land use-related subjects

Hat tip to Jessie Owley for this one...



Job Description


The School of Law at the University of Missouri-Kansas City is seeking qualified candidates for a visiting faculty position to teach the first-year Property I & II courses and meet other curricular needs, especially in the property, land use, or environmental fields. The position is a three-quarter-time, benefits-eligible position and will require teaching courses scheduled from August 15, 2014 through May 2, 2015 with administration of a final exam following each semester, and the maintenance of regular office hours.

The University of Missouri-Kansas City recognizes that a diverse faculty, staff and student body enriches the educational experiences of the entire campus and greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and making every attempt to support their academic, professional and personal success. UMKC is an Affirmative Action/Equal Opportunity employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply. Applicants who are not U.S. citizens must state their current visa and residency status. Pursuant to University policy, all final candidates will be required to successfully pass a Criminal Background Check prior to beginning employment.


Minimum Qualifications


J.D. Prior law school experience teaching Property or related subjects is strongly preferred. Commitment to student-centered, collegial learning environment is required.


Full Time/Part Time


This is a three-quarter-time position.




Salary is negotiable


Application Deadline


May 26, 2014


Application Instructions


The deadline for applications is May 26, 2014. A complete application includes a letter of application detailing desire and qualifications to teach Property and one or more other law school courses. The application should include a curriculum vitae reflecting the highest degree earned and previous teaching/research and practice experience. The application should be submitted to: UMKC Human Resources

If you are experiencing technical problems, please call (855) 523-0002.

For more information, please contact Associate Dean Barbara Glesner Fines

816-235-2380 or

May 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit issues decision on the fate of the Salton Sea

The latest decision in the epic battle over the Colorado River came down this week in the Ninth Circuit's ruling on California ex rel. Imperial County Air Pollution Control Dist. v. U.S. Dept. of Int., 12-55856, 2014 WL 2038234 (9th Cir. 2014).  From the opinion:

The Salton Sea—the largest inland body of water in California—is a creature of accident. In 1905, water from the Colorado River breached an irrigation canal and flooded the then-dry Salton Basin. After the initial flood, irrigation runoff from the Imperial and Coachella Valleys—supplied by the Colorado River—sustained the Sea for more than a century. The Sea has become a unique attraction for water-based recreation in the harsh southern California desert.

The Sea's continued access to Colorado River water is in jeopardy. Over the last few decades Arizona and Nevada began to claim their full entitlements to the stream. California, which has long used more than its share, has been required to conserve. The affected California water districts ultimately agreed to transfer some Colorado River water from the Imperial Valley to urban areas in southern California. The Secretary of the Interior—who controls the delivery of River water—prepared an environmental impact statement (“EIS”), which, among other things, analyzed the effect of these agreements on the Salton Sea. Despite noting some potentially serious environmental consequences, the Secretary eventually approved the agreements and implemented a new water delivery schedule.
Plaintiffs Imperial County and the Imperial County Air Pollution Control District (the “Air District”) then sued the Secretary, claiming that the EIS did not comply with either the National Environmental Policy Act (“NEPA”) or the Clean Air Act (“CAA”). The Imperial Irrigation District (“Imperial Irrigation”), San Diego County Water Authority (“San Diego Water”), Coachella Valley Water District (“Coachella”), and Metropolitan Water District of Southern California (“Metropolitan”), parties to the transfer agreements, intervened as defendants. The district court granted summary judgment to the defendants, finding that neither plaintiff had standing to sue. We disagree as to standing, but nonetheless affirm the judgment, because the district court correctly found in the alternative that the Secretary did not violate NEPA; the record below also makes plain that the Secretary did not violate the CAA.

May 21, 2014 | Permalink | Comments (0) | TrackBack (0)

WVU Law LL.M. Fellowship in Energy and Sustainable Development: Applications due June 30

West Virginia University College of Law

Center for Energy and Sustainable Development

LL.M. Fellowship in Energy and Sustainable Development

West Virginia University College of Law’s Center for Energy and Sustainable Development is now accepting applications for a Fellowship in Energy and Sustainable Development. The fellowship combines the opportunity to work with attorneys, faculty and students at the Center for Energy and Sustainable Development with the opportunity to obtain the LL.M. degree in Energy and Sustainable Development Law.

This fellowship is a part-time (at least twenty hours per week), two-year position from August 2014 through July 2016. The Fellow will receive an annual stipend of $20,000 and tuition remission for the LL.M. program.  The Fellow will further the work of the Center by pursuing research on issues relating to energy and sustainable development law and policy, under the direction of the Center’s Director and the WVU Law faculty associated with the Center. The Fellow will be expected to generate policy-oriented written work to be published through the Center and other venues such as law journals. The Fellow will also assist with projects relating to the Center’s programs, including organizing conferences and other events, and public education and outreach efforts. Efforts will be made to match project assignments with the Fellow’s interest.

Candidates should possess a J.D.; a strong academic record; excellent analytical and writing skills; a demonstrated interest and background in energy, sustainability or environmental law and policy; and admission to the LL.M. program at West Virginia University College of Law (application for LL.M. admission can occur concurrently with the fellowship application).

 We are now accepting applications. The application deadline is June 30, 2014 (concurrent with the deadline for admission to the LL.M. program) or until the post is filled.

 Visit our website at for more information about our programs.

May 21, 2014 | Permalink | Comments (0) | TrackBack (0)

The sharing economy meets local regulation

As some folks know, I have been working on an article on local regulation of the so-called sharing economy.  And so, I am intrigued by today's news that Airbnb will provide anonymous data on its users to the New York Attorney General.  

This Airbnb case is the tip of the iceberg.  The disruptive technologies of the sharing economy will revolutionize municipal licensing and tax revenue structures:  it is only a matter of how fast they do so.  Cities will need to start thinking creatively about how to permit innovation the sharing economy enables while also shoring up their regulatory and financial bases.  To get a sense of what's at stake, consider:  San Francisco's hotel tax is anticipated to generate some $273 million a year in Fiscal Year 2013-14.

Legal academics have--to my knowledge--given short shrift to this emerging topic.  There is, however, a nice primer of the legal issues in the latest issue of the Boston Bar Journal, which is available here.

More thoughts on this from me soon...

Stephen R. Miller

May 21, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 20, 2014

Twenty proposals for growing agritourism at the rural-urban interface

This academic year, my Economic Development Clinic at the University of Idaho College of Law's Boise campus worked with several counties at the rural-urban interface of Idaho's growing cities.  These counties were trying to find ways to help small farms stay in business despite urbanization's encroachment into country life.  After several listening sessions,  it became clear that there was substantial interest in agritourism among the small farmers in these counties.  In response, the Clinic set about to investigate what kinds of legal structures could be put in place to advance agritourism in these areas.  

What we found was a subject of surprising legal complexity and, moreover, a nsacent but rising tide of litigation and legislation in agritourism spurred by entrepreneurial small farmers, the rise of the food movements, and some unexpected consequences of growth in rural areas.  The Clinic's 184-page report, Agritourism at the Rural-Urban Interface:  A National Overview of Legal Issues with 20 Proposals for Idaho, is now available for free on SSRN.  The report covers a lot of legal ground, including a detailed investigation of four existing agritourism ordinances that local governments can use as models.

In the executive summary, the report also provides 20 proposals for growing agritourism in Idaho; in fact, these proposals would apply to most states.  I am reproducing them here for those across the country who might find interest in the subject:

Proposal 1.  Facilitate compliance with Idaho’s Agritourism Promotion Act by providing statute-compliant signage.  Idaho’s Agritourism Promotion Act provides agritourism operators with limited liability for injury or death of a participant resulting from the inherent risks of agritourism activities.  However, to obtain this “safe harbor,” the agritourism operator must post a specifically-worded sign with specific visibility requirements.  Virginia has a similar statute and, to assist agritourism operators in obtaining the safe harbor, a Virginia agritourism operators’ group offers a statute-compliant sign that agritourism operators can purchase.  Idaho, or an agricultural trade group in Idaho, should consider printing and offering, at cost, a similar statute-compliant sign.

Proposal 2.  Consider state statutes and regulations that would permit agritourism-promotion signs on at least state highways and, where possible, federal highwaysIn the Clinic’s discussion with agritourism providers, a recurring request was for the ability to advertise on the state and federal highways.  Georgia and North Carolina currently allow signs on highways and provide models for statutes and regulations that would assist adoption with such agritourism-promotion signage in Idaho.

Proposal 3.  Consider starting a state-sponsored agritourism fund modeled on the agritourism revolving trust fund of Oklahoma.  Oklahoma’s revolving fund receives appropriations from its state department of agriculture and fund expenditures are authorized and approved by a majority vote of the five members appointed to and constituting a board that oversees the fund.

Proposal 4.  Consider starting a statewide agritourism operator-funded marketing fund, such as the ones started by Mississippi and Missouri. In Mississippi, the state created a fund within the state treasury for the benefit of agritourism, which is funded by an annual fee (currently $50) required of all agritourism professionals, which is placed in the fund and used to promote and publicize agritourism in the state.  Missouri operates a similar state fund to promote agritourism that is funded through registration fees (currently $100).

Proposal 5.  Draft an agricultural building and structures code that prioritizes both safety and access to authentic rural experiences.  One of the toughest challenges for beginning agritourism operations is re-purposing existing agricultural buildings—most of which are exempted from building code requirements—to meet building code standards for public access.  The state should consider drafting a building code that would provide guidance in assisting agricultural buildings being re-purposed for agritourism uses.  Such a code might also consider specific provisions for historic agricultural buildings and structures.

Proposal 6.  Consider a statute authorizing agricultural promotion districts as Texas has done.  A Texas statute permits the creation of special districts called “agricultural promotion districts,” which have the dual purposes of conserving and developing natural resources of the state and also creating economic development opportunities for agricultural enterprises, facilities and services of the district.  In Texas, the district permits the assessment of special fees upon those in the district.  Such a district permits those who wish to promote agritourism in their rural communities to provide themselves a revenue source for marketing similar to how business improvement districts operate within cities.

Proposal 7.  Align definitions of agriculture in state statutes to ensure that they are properly reflecting the state’s intents with regard to agritourism.  As this report details, several of Idaho’s agricultural statutes, such as its right-to-farm law, are ambiguous in their application to agritourism activities.  The State may wish to consider amending some of these statutes to explicitly include, or exclude, agritourism from the definition of “agriculture” in its state statutes. 

Proposal 8.  Create a statewide agritourism working group to form regional agritourism-based economic development models based on “bottom up” planning.  The State should consider a standing working group on agritourism, such as Virginia’s On-Farm Activities Working Group.  Further, the State should consider a “bottom up” plan for using agritourism as a means of economic development in rural communities.  A model for such planning could be Colorado’s Blueprint, which in 2011 sought to evaluate the weaknesses of the state’s economy generally.  In turn, a state team facilitated an economic development planning session in each of the state’s counties, which were then rolled up into fourteen regional plans that, in turn, were rolled up into a comprehensive, statewide economic development plan.  The viability of agritourism is tied to its local character, and it makes sense that agritourism planning should arise from a local source.

Proposal 9.  Encourage local governments, and counties in particular, to create permitting systems that rationalize agritourism’s relation to local government regulation.  A permitting system does not mean more regulation, necessarily; a good permitting system that assists farmers foresee the types of regulations necessary to change from agricultural to agritourism uses can help private parties better plan for the transition and leads to more transparency and accountability.  This report provides four model ordinances from Thurston County, Washington; Weber County, Utah; Tehama County, California; and Lawrence County, South Dakota to provide a range of options for local governments to consider.

Proposal 10.  Provide Idaho agritourism operators assistance in seeking federal program dollars that would assist agritourism’s growth in the state.   The Agricultural Act of 2014 (the “2014 Farm Bill”) presents new opportunities for economic development through agritourism.  First, the 2014 Farm Bill continues USDA Rural Development programs that support investments in the economy through grants, loans and loan guarantees.  The 2014 Farm Bill reserves 10% of certain programs for regional, long-term investments to better promote economic development through regional planning.  Also, the 2014 Farm Bill provides $30 million annually to the “Farmers Market and Local Food Promotion Program.”  In addition to providing funding for rural development and regional food systems, the 2014 Farm Bill also provides significant funding for organic farmers.  First, the 2014 Farm Bill provides for $57.5 million to help growers make the transition from conventional to organic farming.  In seeking to attract farmers to go organic, USDA is expanding organic price elections so that crop insurance will cover more crops.   Additionally, the 2014 Farm Bill provides for mandatory funding, $11.5 million annually, to assist organic producers and handlers with the cost of organic certification.  Further, the Bill provides for a $100 million, over the life of the Bill, for the Organic Agriculture Research and Extension Initiative; USDA’s primary organic research and grant program.  These are just some of the federal programs that could assist agritourism operators.  The State should consider assisting such smaller operators in seeking out funds such as these.

Proposal 11.  Provide more opportunities for small farmers to feed institutional communities, such as schools, universities, prisons, and hospitals, which are operated by the state or in which the state has an interest.  It was only a generation ago that local farmers routinely provided staples, such as eggs, butter, and meat—to the pantries of state and local institutions, such as the local school.  The mid-century federalization of some of these programs, such as school lunches, encouraged institutions to receive supplies from industrial producers.  Now, the trend is going the other way.  Idaho has already moved in this direction with its Idaho Farm to School program.  This is a commendable effort, and it should be built upon and furthered to other institutions throughout the state.  Since 2013, USDA has invested nearly $10 million in Farm to School grants nationwide that support schools as they purchase from local or regional sources.  Recently, the national Farm to School Program put seven new Farm to School Coordinators on the ground in regional offices to help build relationships between small and mid-sized farmers and ranchers.  One of the biggest priorities for this program is to create more opportunities for small and mid-sized livestock and poultry producers.  Idaho should further pursue such opportunities. 

Proposal 12.  Consider approaching agritourism planning through a foodshed approach to funding agritourism.  Farm and city used to be separate spheres; no more.  The urban environment has invited the country into its midsts:  many urbanites want chickens in their back yards and gardens in their front yards.  Urbanites flock to farmers’ markets.  At the same time, many urbanites also want a closer connection to rural life and, especially, an opportunity to experience how food is made.  This concept is increasingly referred to as a city’s “foodshed.”  Idaho should embrace this concept—in which there is a continuum of agricultural planning from the urban to the rural, from farmers’ markets in cities and zoning for urban animal production, to agritourism activities that permit urbanites to experience the farm and which also offer up secondary income to small farmers.     

Proposal 13.  Consider how agritourism could be used to preserve the best farmland.  Most cities were built adjacent to the best farmland in a region.  As cities grow, their development consumes that farmland.  Many of Idaho’s cities, especially in the Treasure Valley, are exploding with growth and, at the same time, paving over much of the State’s best farmland.  The COMPASS 2040 Communities in Motion vision map illustrates how, in just a few short decades, the drive from Boise to Caldwell will likely be completely paved over.  If Idaho wants to save any of the best farmland in the Treasure Valley, the time to act is now.  Promoting agritourism activities on the best farmland can be one way of helping retain farmland uses, both for purposes of maintaining food security for the region, but also as a way to provide a rural cultural resource for the new development of the valley.

Proposal 14.  Consider a tax credit, similar to Kansas' five-year tax credit for 20% of the liability insurance paid by an agritourism operator, to encourage agritourism operationsMany states, such as Idaho, already provide some liability protection to agritourism operators.  Kansas’ tax credit further incentivizes agritourism by assisting with insurance premiums during the beginning years of an agritourism operation.

Proposal 15.  Consider a statewide registration of agritourism operations, such as required by Louisiana, to permit more coherent and knowledgeable marketing of the State’s agritourism operators.  Registration would permit the state to then better assist the growth of an agritourism industry.  For instance, it could assist with the development of marketing, such as “apps” or other social media that could facilitate customers visiting agricultural areas.

Proposal 16.  Consider starting an unclaimed property agritourism promotion trust fund.   Such a fund could be modeled on Colorado’s Unclaimed Property Act, which creates an unclaimed property tourism promotion trust fund from which 10% of the interest earned is used to promote agritourism.

Proposal 17.  Consider adding “culinary interests” to the existing Idaho Agritourism Promotion Act,  as well as future agritourism legislation, as Colorado has done.  Agritourism aligns well with the “food movement,” which prioritizes locally grown and organic fruits, vegetables, and meats, as well as artisanal food products.  Agritourism capitalizes on this movement through events such as farm-to-fork dinners, wine tasting rooms, and cooking classes in inspiring rural settings. 

Proposal 18.  Consider creating an agritourism division within a state agency, or as a working group between state agencies.  Kentucky created a Division of Agritourism in its Office for Agricultural Marketing and Product Promotion to develop a “statewide master plan” for agritourism.  As a result, Kentucky has one of the country’s most aggressive agritourism strategies, which is guided by these institutionalized state planning efforts.  Such a division could be located within the Department of Agriculture; however, other state departments, such as Commerce and Labor, might also contribute substantial knowledge.  It makes sense for the division to have inter-departmental reach, even if reporting only to one agency.

Proposal 19.  Consider clearly permitting agritourism as a permitted use for cooperative marketing associations.  Currently, cooperative marketing associations are permitted for “the production, marketing or selling of the agricultural products of its members,” a phrase which may include marketing agritourism activities.  The State may wish to consider explicitly permitting the use of cooperative marketing associations for agritourism.

Proposal 20.  Consider planning for agritourism as part of local governments’ agriculture component in the comprehensive planning process.  Beginning in 2011, Idaho Code section 67-6508(n) required local governments to include an agriculture component in their comprehensive plans.  Integrating agritourism into those agriculture components would ensure that local governments are planning strategically not only for the growth of their communities, but also for the retention of farms and growing rural amenities, such as agritourism, that so many urban residents seek.  

Each proposal is more thoroughly investigated throughout the report.  Appendix C in the report may also prove useful, as it provides a list of numerous agritourism resources identified by the Clinic, each typically focused on a specific region, across the country.

Many thanks for the great work of my three year-long students--Alexandra Grande, Caitlin Fuller, and Tyler Beck--who did a great deal of research for both this public report and our client-specific projects.  

I welcome feedback at millers at uidaho dot edu.

Stephen R. Miller

May 20, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, May 19, 2014

Columbia Law School’s Center for Climate Change Law hiring full-time Executive Director

Columbia Law School’s Center for Climate Change Law (CCCL), established in 2009, develops legal techniques to fight climate change; analyzes legal developments in the field, both domestic and international; carries out original legal and policy research; creates and posts databases on climate-related laws; and has an active program of publications and conferences.  CCCL works closely with the Law School’s Environmental Law Clinic and with the physical and social scientists at Columbia University’s Earth Institute.  Further information about CCCL’s activities can be found at

CCCL has now grown to the point that it is hiring a full-time Executive Director who will assist the faculty Director, Professor Michael B. Gerrard, in managing its operations.  The position will involve activities that are substantive (e.g. researching and writing publications), managerial (e.g. overseeing CCCL staff), and a combination of both (e.g. guiding and editing the work of lawyers and interns).

Specific Responsibilities:

•           Supervise CCCL’s staff of junior lawyers (fellows)

•           Oversee CCCL’s law student and undergraduate interns, including during CCCL’s summer program

•           Recruit and help select junior lawyers and interns

•           Oversee CCCL’s program of conferences and publications, as well as its social media platforms (blog, Facebook, Twitter)

•           Lead CCCL’s strategic planning initiatives, including the preparation of annual strategic plans, funding reports, and periodic progress updates

•           Work with CCCL’s visiting scholars from universities around the world to help them execute their research proposals

•           Research and write publications

•           Speak at conferences

•           Guest teach classes

•           Represent CCCL on various committees and working groups inside and outside the university

•           Prepare grant proposals and otherwise work on fundraising activities

•           Work to build new collaborations within Columbia and with local, national and international academic institutions, not-for-profit organizations and governments



•           J.D. or LL.M. degree

•           Substantial background in environmental or energy law

•           A record of publications, preferably in both scholarly and popular outlets

•           At least three years experience doing environmental or energy-related work in the academic, N.G.O., governmental or private sectors 

•           Experience managing other lawyers or interns

•           Public speaking experience and ability



$120,000/year starting salary plus full benefits


To apply:

Please send cover letter and C.V. to, or mail to:


Michael B. Gerrard

Andrew Sabin Professor of Professional Practice

Director, Center for Climate Change Law

Columbia Law School

435 West 116th Street

New York, New York 10027


 No calls, please.

The position will remain open until it is filled.

The position is also posted at the site below:

May 19, 2014 | Permalink | Comments (0) | TrackBack (0)